California Appellate Tracker

McNair v. Maxwell & Morgan PC

July 2, 2018

A collection attorney engages in debt collection for purposes of the Fair Debt Collection Practices Act when he pursues judicial foreclosure because that proceeding allows for the collection of a deficiency judgment—unlike a nonjudicial foreclosure, the sole goal of which is to retake property given as security.

A collection attorney who regularly collects debts (including in this case overdue homeowners association dues) is a debt collector for FDCPA purposes. And the attorney engages in debt collection when he files and pursues a judicial foreclosure suit that allows for the collection of a deficiency judgment. Ho v. ReconTrust Co. (9th Cir. 2017) 858 F.3d 568 is distinguishable because it involved only nonjudicial foreclosure, the sole goal of which is to retake property given as security, not to collect money to pay a debt. The defendant attorneys violated the FDCPA by applying for a writ of execution in the judicial foreclosure action including accrued attorney fees which had not yet been approved by the court. The application falsely implied that the fees had been approved by the court as that was a prerequisite for seeking to add them to the amount of the writ.

Ninth Circuit Court of Appeal (Arterton, J., sitting by designation); June 25, 2018; 2018 U.S. App. LEXIS 17171

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McNair v. Maxwell & Morgan PC

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